Law Commons^™

Antitrust And Regulating Big Data, D. Daniel Sokol, Roisin E. Comerford

D. Daniel Sokol

The collection of user data online has seen enormous growth in recent years. Consumers have benefited from this growth through an increase in free or heavily subsidized services, better quality offerings, and rapid innovation. At the same time, the debate about Big Data, and what it really means for consumers and competition, has grown louder. Many have focused on whether Big Data even presents an antitrust issue, and whether and how harms resulting from Big Data should be analyzed and remedied under the antitrust laws. The academic literature, however, has somewhat lagged behind the policy debate, and a closer inspection …

Troubled Waters Between U.S. And European Antitrust, D. Daniel Sokol

D. Daniel Sokol

Antitrust is an important area of law and policy for most companies in the world. Having divergent rules across antitrust systems means that the same economic behavior may be treated differently depending on the jurisdiction, leading to disparate outcomes in which one jurisdiction finds illegal behavior (but the other does not) when the underlying behavior may be pro-competitive. This disparate set of outcomes creates a world in which the most stringent antitrust system may produce the global standard. As a result, if the antitrust rules applied are too rigid, they threaten to hurt consumers not merely in the jurisdiction where …

Revisiting The Public Utility, Jim Rossi, Morgan Ricks

Morgan Ricks

This foreword introduces "Revisiting the Public Utility," a series of essays published in a special issue of Yale Journal on Regulation. We cluster the contributions to this issue around public utility regulation’s core rationales and its scope, its implications for innovation and industry stability, and its evolving approach to price regulation. The scholarship represented in this issue challenges the notion that public utility ideas are obsolete or irrelevant to modern issues in economic regulation. It questions whether public utility regulation has fallen short of its goals, and shows that there are some good reasons to question many embedded regulatory practices. …

Requirements For A Renewables Revolution, Felix Mormann

Felix Mormann

This Article identifies and analyzes the obstacles presently barring the rise of renewables, evaluates the role of the current policy favorite emission pricing, and offers design recommendations for a comprehensive U.S. renewables policy.

Successful climate change mitigation requires a timely shift to renewable sources of energy, such as sunlight, wind or tides, to decarbonize today’s high-carbon electricity sector. But market pull alone is not strong enough. This Article discusses the most widely cited economic barriers and identifies and evaluates additional obstacles related to the electricity sector’s regulatory framework.

Emission pricing is largely considered the most efficient policy to drive the …

Mobilizing Public Markets To Finance Renewable Energy Projects: Insights From Expert Stakeholders, Paul Schwabe, Michael Mendelsohn, Felix Mormann, Douglas J. Arent

Felix Mormann

Financing renewable energy projects in the United States can be a complex, time consuming, and expensive process. Currently, most equity investment in new renewable power production facilities is supported by tax credits and accelerated depreciation benefits, and is constrained by the pool of potential investors that can fully use these tax benefits and are willing to engage in complex financial structures. For debt financing, non-government lending to renewables has largely been provided by foreign banks that may be under future lending constraints due to economic and regulatory conditions.

To discuss these and other renewable energy financing challenges and to identify …

Enhancing The Investor Appeal Of Renewable Energy, Felix Mormann

Felix Mormann

This article introduces an investor-oriented framework for the evaluation of renewable energy policy, applies these newly developed criteria to a qualitative comparison of the primary policy instruments, and offers recommendations to enhance the investor appeal of renewable energy in the United States.

The multi-trillion dollar task of scaling renewable energy technologies to mitigate climate change, ensure energy security, and create green jobs is one of the most daunting challenges of the twenty-first century. It is, in fact, too great a challenge for either the public or private sector to shoulder alone. Rather, public policy must catalyze private investment in renewable …

Regulating In Uncertainty: Animating The Public Health Product Safety Net To Capture Consumer Products Regulated By The Fda That Use Innovative Technologies, Including Nanotechnologies, Genetic Modification, Cloning, And Lab Grown Meat, Katharine A. Van Tassel

Katharine Van Tassel

This Article will use nanotechnology as an example that highlights how regulation based on novelty rather than hazard achieves the proper balance between protecting public health while encouraging innovation through the animation of the public health product safety net. In Part II, this Article starts by explaining what nanotechnology is and the remarkable growth of its use in everyday consumer products. It then summarizes the steadily increasing number of studies that suggest that there are likely to be serious health risks associated with the use of nanotech consumer products. Next, it explains how the FDA [Food and Drug Administration] is …

Intellectual Property And Public Health – A White Paper, Ryan G. Vacca, Jim Chen, Jay Dratler Jr., Tom Folsom, Timothy Hall, Yaniv Heled, Frank Pasquale, Elizabeth Reilly, Jeff Samuels, Kathy Strandburg, Kara Swanson, Andrew Torrance, Katharine Van Tassel

Katharine Van Tassel

On October 26, 2012, the University of Akron School of Law’s Center for Intellectual Property and Technology hosted its Sixth Annual IP Scholars Forum. In attendance were thirteen legal scholars with expertise and an interest in IP and public health who met to discuss problems and potential solutions at the intersection of these fields. This report summarizes this discussion by describing the problems raised, areas of agreement and disagreement between the participants, suggestions and solutions made by participants and the subsequent evaluations of these suggestions and solutions.

Led by the moderator, participants at the Forum focused generally on three broad …

The Actavis Inference: Theory And Practice, Aaron S. Edlin, C. Scott Hemphill, Herbert J. Hovenkamp, Carl Shapiro

Aaron Edlin

In FTC v. Actavis, Inc., the Supreme Court considered "reverse payment" settlements of patent infringement litigation. In such a settlement, a patentee pays the alleged infringer to settle, and the alleged infringer agrees not to enter the market for a period of time. The Court held that a reverse payment settlement violates antitrust law if the patentee is paying to avoid competition. The core insight of Actavis is the Actavis Inference: a large and otherwise unexplained payment, combined with delayed entry, supports a reasonable inference of harm to consumers from lessened competition.This paper is an effort to assist courts and …

Activating Actavis, Aaron Edlin, C. Scott Hemphill, Herbert J. Hovenkamp, Carl Shapiro

Aaron Edlin

In Federal Trade Commission v. Actavis, Inc., the Supreme Court provided fundamental guidance about how courts should handle antitrust challenges to reverse payment patent settlements. The Court came down strongly in favor of an antitrust solution to the problem, concluding that “an antitrust action is likely to prove more feasible administratively than the Eleventh Circuit believed.” At the same time, Justice Breyer’s majority opinion acknowledged that the Court did not answer every relevant question. The opinion closed by “leav[ing] to the lower courts the structuring of the present rule-of-reason antitrust litigation.”This article is an effort to help courts and counsel …

Actavis And Error Costs: A Reply To Critics, Aaron S. Edlin, C. Scott Hemphill, Herbert J. Hovenkamp, Carl Shapiro

Aaron Edlin

The Supreme Court’s opinion in Federal Trade Commission v. Actavis, Inc. provided fundamental guidance about how courts should handle antitrust challenges to reverse payment patent settlements. In our previous article, Activating Actavis, we identified and operationalized the essential features of the Court’s analysis. Our analysis has been challenged by four economists, who argue that our approach might condemn procompetitive settlements.As we explain in this reply, such settlements are feasible, however, only under special circumstances. Moreover, even where feasible, the parties would not actually choose such a settlement in equilibrium. These considerations, and others discussed in the reply, serve to confirm …

Patent Injunctions On Appeal: An Empirical Study Of The Federal Circuit's Application Of Ebay, Christopher B. Seaman, Ryan T. Holte

Christopher B. Seaman

More than ten years after the United States Supreme Court’s landmark decision in eBay v. MercExchange, the availability of injunctive relief in patent cases remains hotly contested. For example, in a recent decision in the long-running litigation between Apple and Samsung, members of the United States Court of Appeals for the Federal Circuit divided sharply on whether an injunction was warranted to prevent Samsung from continuing to infringe several smartphone features patented by Apple. To date, however, nearly all empirical scholarship regarding eBay has focused on trial court decisions, rather than the Federal Circuit. This Article represents the first comprehensive …

U.S. Patent Extraterritoriality Within The International Context, Amy L. Landers

Amy L. Landers

Permanent Injunctions In Patent Litigation After Ebay: An Empirical Study, Christopher B. Seaman

Christopher B. Seaman

Institutionalizing Legal Innovation: The (Re)Emergence Of The Law Lab, Martha F. Davis

Martha F. Davis

As the terrain for legal education shifts, law schools are looking across disciplines for new approaches to legal education, with a number of law schools recently establishing “law labs.” This article examines this new law lab movement, with a particular focus on the subset of legal innovation labs. Law labs were originally proposed as part of the legal realist-era law clinic movement, and there are many parallels between law labs and traditional clinics. For example, both law labs and clinics borrow terminology and specific methodologies from the sciences, particularly medicine, and both arise in reaction to the entrenched case method …

The Interconnections Between Entrepreneurship, Science, And The Patent System, Amy L. Landers

Amy L. Landers

Response: Systems Of Human And Intellectual Capital, Mark Mckenna, Brett F. Frischmann

Mark P. McKenna

This essay reviews Orly Lobel's article The New Cognitive Property: Human Capital Law and the Reach of Intellectual Property. It commends Professor Lobel for outlining the contours of the “new” field of human capital law, and for emphasizing the potential consequences of the growing enclosure of cognitive capacities in contemporary markets. From this starting point the essay makes two modest suggestions for researchers. First, it suggests that those building on Lobel’s work consider more contextual description and evaluation of human and intellectual capital production systems. Doing so would avoid overly abstract, macro-level analysis that is often divorced from reality and …

Where Tradition Meets Innovation: Providing A Practice-Oriented Curriculum, Andrea Lyon

Andrea D. Lyon

No abstract provided.

American Innovation And The Limits Of Patent Law: A Response To William Hubbard, Competitive Patent Law, Christopher B. Seaman

Christopher B. Seaman

In his recent article Competitive Patent Law, Professor William Hubbard makes a valuable contribution regarding an underexplored aspect of patent law’s ability to encourage innovation — namely, “whether U.S. patent law can be tailored to provide U.S. innovators with enhanced incentives to invent” compared to foreign rivals, and thus by extension make American firms more competitive in the global marketplace. This brief response addresses three aspects of Professor Hubbard’s thoughtful and well-written article. First, it critiques the article’s contention that the United States is currently facing an “innovation gap.” Second, it critically evaluates the claim that patent law can play …

Antitrust, Innovation, And Product Design In Platform Markets: Microsoft And Intel, William H. Page, Seldon J. Childers

William H. Page

The Antitrust Division’s Microsoft case and the Federal Trade Commission’s Intel case both rested on claims that antitrust intervention was necessary to preserve innovation in technological platforms at the heart of the personal computer. Yet, because those very platforms support markets that are among the most innovative in the American economy, injudicious intervention might well have jeopardized the very innovation that antitrust should promote. In this article, we review the role of platforms in technological innovation and consider how antitrust standards should apply to them. We then examine how Microsoft resolved antitrust issues affecting platform design at various stages of …

Antitrust And The Patent System: A Reexamination, Herbert Hovenkamp

Herbert Hovenkamp

Since the federal antitrust laws were first passed they have cycled through extreme positions on the relationship between competition law and the patent system. Previous studies of antitrust and the patent system have generally assumed that patents are valid, discrete, and generally of high quality in the sense that they further innovation. As a result, increasing the returns to patenting increases the incentive to do socially valuable innovation. Further, if the returns to the patentee exceed the social losses caused by increased exclusion, the tradeoff is positive and antitrust should not interfere. If a patent does nothing to further innovation, …

Do Patent Licensing Demands Mean Innovation?, Robin C. Feldman, Mark A. Lemley

Robin C Feldman

Introduction: The Defend Trade Secrets Act Of 2015, Christopher B. Seaman

Christopher B. Seaman

Patentable Subject Matter As A Policy Lever, Amy L. Landers

Amy L. Landers

Patents are intended to be used as instruments to further policy. One potent policy driver to accomplish such goals is through the legal construction and application of the term “invention." Internationally, various legal authorities have recognized that this definition can be crafted in ways that are targeted to have real-world consequences. In the U.S., the open-ended framework of the Patent Act's section 101 invites judicial interpretation to effectuate the law's purposes. Ideally, these determinations should rest on articulated, transparent reasoning so that, under a common law system, those policies can serve as touchstones to ensure that the relevant precedents are …

The Anti-Patent: A Proposal For Startup Immunity, Amy L. Landers

Amy L. Landers

The controversy surrounding the current implementation of the patent system is well known. Some question whether the system has become entirely dysfunctional and disincentives innovation, particularly as the law operates within some industries. Moreover, early stage companies, particularly those just beginning to gain success, are particularly vulnerable targets for lawsuits. Notably, these same companies can be rich sources of important technological innovation.

Because the U.S. has always had a patent system, it is impossible to understand the intended and unintended consequences of eliminating this form of intellectual property protection even in a limited manner. As economist Fritz Machlup stated in …

Social Innovation, Peter Lee

Peter Lee

This Article provides the first legal examination of the immensely valuable but underappreciated phenomenon of social innovation. Innovations such as cognitive behavioral therapy, microfinance, and strategies to reduce hospital-based infections greatly enhance social welfare yet operate completely outside of the patent system, the primary legal mechanism for promoting innovation. This Article draws on empirical evidence to elucidate this significant kind of innovation and explore its divergence from the classic model of technological innovation championed by the patent system. In so doing, it illustrates how patent law exhibits a rather crabbed, particularistic conception of innovation. Among other characteristics, innovation in the …

Trips & Development, Daniel J. Gervais

Daniel J Gervais

This brief Chapter in the (forthcoming) SAGE Handbook of Intellectual Property examines available data and analyses concerning the impact of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) on development. The Chapter considers distinctions among types of countries and industries, and the role of the World Intellectual Property Organization (WIPO).

Government Choices In Innovation Funding (With Reference To Climate Change), Joshua D. Sarnoff

Joshua D Sarnoff

Intellectual Property And Public Health – A White Paper, Ryan G. Vacca, Jim Chen, Jay Dratler Jr., Tom Folsom, Timothy Hall, Yaniv Heled, Frank Pasquale, Elizabeth Reilly, Jeff Samuels, Kathy Strandburg, Kara Swanson, Andrew Torrance, Katharine Van Tassel

Frank A. Pasquale

On October 26, 2012, the University of Akron School of Law’s Center for Intellectual Property and Technology hosted its Sixth Annual IP Scholars Forum. In attendance were thirteen legal scholars with expertise and an interest in IP and public health who met to discuss problems and potential solutions at the intersection of these fields. This report summarizes this discussion by describing the problems raised, areas of agreement and disagreement between the participants, suggestions and solutions made by participants and the subsequent evaluations of these suggestions and solutions.

Led by the moderator, participants at the Forum focused generally on three broad …

Intellectual Property And Public Health – A White Paper, Ryan G. Vacca, Jim Chen, Jay Dratler Jr., Tom Folsom, Timothy Hall, Yaniv Heled, Frank Pasquale, Elizabeth Reilly, Jeff Samuels, Kathy Strandburg, Kara Swanson, Andrew Torrance, Katharine Van Tassel

Katharine Van Tassel

On October 26, 2012, the University of Akron School of Law’s Center for Intellectual Property and Technology hosted its Sixth Annual IP Scholars Forum. In attendance were thirteen legal scholars with expertise and an interest in IP and public health who met to discuss problems and potential solutions at the intersection of these fields. This report summarizes this discussion by describing the problems raised, areas of agreement and disagreement between the participants, suggestions and solutions made by participants and the subsequent evaluations of these suggestions and solutions.

Led by the moderator, participants at the Forum focused generally on three broad …